Citation NR: 9707835
Decision Date: 03/11/97 Archive Date: 03/25/97
DOCKET NO. 96-42 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Wisconsin Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
Thomas A. Yeager, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1977 to
March 1979.
This appeal arises from a December 1995 rating decision by
the Department of Veterans’ Affairs (VA) Regional Office (RO)
in Milwaukee, Wisconsin, wherein the RO denied the veteran’s
claim of entitlement to service connection for post-traumatic
stress disorder (PTSD).
REMAND
In this case, the Board notes that the veteran has twice been
diagnosed as having PTSD or “PTSD features” by VA physicians,
based on a history of service provided by the veteran to the
examiners. Such a diagnosis, however, is only the starting
point in adjudicating a claim for service connection for
PTSD. There must also exist “credible supporting evidence
that the claimed inservice stressor actually occurred,”
together with a medically evidenced link between current
symptoms and the claimed stressor. 38 C.F.R. § 3.304(f)
(1996).
The veteran alleges that his stressors occurred while
performing covert or “undercover” work for the U.S. Air Force
Office of Special Investigations (AFOSI), pertaining to
identification, apprehension and trial of military drug
traffickers. He has stated that this work put him in
situations where he was in fear of his life, particularly in
one instance when a group of individuals he had been directed
to infiltrate detained and threatened to kill him after he
was identified as a “snitch” by the target of a previous
investigation. The veteran has provided names, ranks and
duty stations for his claimed AFOSI supervisors, as well as
the name of an airman who the veteran states was tried in a
civil court in Oklahoma City in 1978 after being arrested for
use or transfer of LSD as the result of the veteran’s
efforts.
The Board notes that none of these situations constitute
“combat with the enemy,” nor has the veteran alleged that any
of his stressors relate to combat. Under these
circumstances, the Court of Veterans Appeals has held that “.
. . the veteran's lay testimony, by itself, will not be
enough to establish the occurrence of the alleged stressor.
[Citation omitted]. Instead, the record must contain service
records which corroborate the veteran's testimony as to the
occurrence of the claimed stressor.” Zarycki v. Brown, 6
Vet.App. 91, 98 (1993) (emphasis added); see also,
38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f)
(1996).
The RO attempted to verify the veteran’s statements
concerning his stressors by requesting that the National
Personnel Record Center (NPRC), St. Louis, Missouri, provide
a “complete official military personnel file (OMPF) and
airman military record (AF Form 7) pgs 36-39 and performance
reports,” together with records of units and dates assigned,
and official travel outside the continental United States.
NPRC’s response indicated that there were no AF-7 or
performance reports in the veteran’s file. The only
documents provided by NPRC were the veteran’s report of
separation from active duty (DD-214), with corrections, and
the Airman Separation Record (ASR). The RO also requested
that the United States Army and Joint Services Environmental
Support Group (ESG) and the U.S. Army Office of Special
Investigations (OSI) attempt to verify the veteran’s
involvement with AFOSI. The ESG was also asked to provide
information on the “Threatened Airman Act,” a statute or
regulation under which the veteran claimed he had been
processed for separation. The U.S. Army OSI indicated that
they had no record of the veteran, and the ESG indicated that
they were “unable to verify” the veteran’s alleged assignment
to AFOSI. The ESG referred the RO to the Commander, U.S. Air
Force Military Personnel Center, Randolph AFB, Texas, for
information concerning the “Threatened Airman Act.” However,
it does not appear that any additional inquiry concerning the
act was made.
The veteran claims to have been transferred at frequent
intervals, since his “undercover” status was compromised at
the point arrests were made. This assertion receives some
support from the ASR, which indicates that following
completion of aircraft maintenance school, the veteran
received permanent change of station (PCS) orders three times
in the following one year period, each time to a different
geographic location of the United States. The Board notes
that PCS assignments, as distinguished from temporary duty
(TDY or TAD), are generally for periods of 2-3 years, and
finds the veteran’s situation so strikingly at variance from
the norm that it requires further investigation and
explanation. There is also no immediately obvious or
plausible explanation as to why the veteran would have been
separated from active duty after serving 19 months of a four-
year enlistment, with no apparent record of hardship,
multiple non-judicial punishments, poor professional
performance, or other inability to adapt to military life.
The veteran’s reenlistment (RE) code and separation program
designator (SPD) on his DD-214 indicate only that he was
deemed ineligible to reenlist without a waiver and was
voluntarily released for “miscellaneous other reasons”.
While these notations do not provide clear support for the
circumstances of separation related by the veteran, neither
are they inconsistent with his version of events.
The VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1991). The provisions of the VA
ADJUDICATION PROCEDURE MANUAL M21-1 (MANUAL M21-1) pertaining
to the evaluation of PTSD claims provide that, “where records
available to the rating board do not provide objective or
supportive evidence of the alleged inservice traumatic
stressor, it is necessary to develop this evidence.” Manual
M21-1, Part VI, 7.46(f)(2). Notwithstanding the considerable
efforts of the RO to obtain confirmation of the veteran’s
claims, the Board finds that the circumstances reviewed above
require additional development of the record. Accordingly,
this case is REMANDED to the RO for the following action:
1. The RO should again request that the
National Personnel Record Center provide
service records for the periods of the
veteran’s active military service,
including the full military personnel
file and any record of temporary duty
travel either outside or within the
continental United States. Any material
received should be made a part of the
claims file, together with a description
of the circumstances of any negative
responses.
2. The RO should write to the Commander,
U.S. Air Force Military Personnel Center,
Randolph Air Force Base, Texas 78150-
6001, and request copies of any
regulations or pertinent portions of
manuals which were effective in March
1979 concerning the “Threatened Airman
Act” (or other-named program related to
the separation from active duty of Air
Force personnel who are under threat as a
result of their participation in a
criminal investigation). The RO should
forward a copy of the veteran’s DD-214
(and the corrective DD-215) with this
communication, and request that the
Commander determine, if possible, whether
the veteran was separated under this
program, or if the notations on the
veteran’s DD-214/215 are consistent with
a separation under this program.
3. The RO should forward a copy of the
veteran’s stressor statements, together
with his airman separation record, to:
Headquarters, U.S. Air Force Office of
Special Investigations (AFOSI), 500
Duncan Avenue, Room 1009, Bolling AFB,
Washington, DC 20332-6000, Attn:
Information Release, and request that
they determine whether the veteran was
assigned to duty with or performed duties
for AFOSI at any time. In addition,
AFOSI should be requested to determine
whether David Yachsteimer and Jack
Gilbride were assigned to or performed
duties for AFOSI at the places and during
the dates noted in the stressor
statement.
4. The RO should forward a copy of the
veteran’s stressor statement to the
Office of the U.S. District Attorney for
the District of Oklahoma, and request
that they determine whether their records
reflect the veteran’s involvement as a
witness or informant in a criminal
investigation of a “Michael Bell” for
actual or attempted possession, use or
transfer of LSD in the last six months of
1978.
5. Following the receipt of the material
requested above, and the completion of
any additional development warranted or
suggested by that office, the RO should
prepare a report detailing the nature of
any non-combat action, inservice
stressful event, verified by the evidence
of record. If no non-combat stressor has
been verified, the RO should so state in
their report. This report is then to be
added to the claims folder.
6. After the development requested above
has been completed to the extent possible
(and any additional development deemed
necessary by the RO), the RO should again
review the record. If any benefit sought
on appeal for which a notice of
disagreement has been filed remains
denied, the veteran should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The purpose of this REMAND is
to obtain additional information and to accord due process of
the law. The board does not intimate any opinion, either
factual or legal, as to the ultimate disposition warranted in
this case. No action is required of the veteran unless he is
notified by the RO.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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